CR No. 778 OF 2008; The State v Koivi Ipai (No. 2) (2010) N4173

• Jurisdiction: Papua New Guinea
• Judge: Kawi, J
• Judgment Date: 28 July 2010
• Court: National Court
• Citation: (2010) N4173
• Year: 2010
• Judgement Number: N4173

Full Title: CR No. 778 OF 2008; The State v Koivi Ipai (No. 2) (2010) N4173

National Court: Kawi, J

Judgment Delivered: 28 July 2010

N4173

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 778 OF 2008

THE STATE

V

KOIVI IPAI (NO. 2)

Waigani: Kawi, J

2010: 11th And 12th March & 16th & 28th July

CRIMINAL LAW – Sentence- Offence of police officer wilfully permitting a prisoner to escape from lawful custody - prisoner a police officer and a law enforcer permitting a law breaker and a suspect for break and enter and stealing to escape from lawful custody- policeman breached the Police oath of duty to enforce, maintain and uphold the rule of Law - Offence classified as a non violent offence as no one was hurt nor properties damaged in the perpetration of this offence - no one benefitted from the commission of this crime - Escapee still at large - Offender a Police officer of more than thirty years - Sentencing range for non violent crimes considered - ten(10) months head sentence imposed but fully suspended with orders to do community work.

Cases cited

Aloises Peter Iboro Kovei –v the State [2001] SC 676

The State –v- Martin Sahin Terea [2005] N2816

The State –v- Wellington Belawa [1988-89] PNGLR 496

State-v- Steven Molu Minji, Simon Koso Kerenga, Didi Gelwak Sakol, John Minji and James Kauboi [2009] N3794.

The State –v- Betty Kaime, unreported and unnumbered judgment of Makail J dated 13th November 2008.

Dorren Liprin –v- The State [2001] SC 673

The State –v- Jan Tundubo & 4 ors, unnumbered and unreported judgment of Makail J dated 10th December 2008.

The State –v- Morgan Bae, CR 990 of 2009 unnumbered judgment of Kawi J dated 25th March 2010

The State –v- Roger Meckpi (2010) CR 770 of 2010 Unnumbered and unreported judgment of Kawi J dated 16th April 2010.

Richard Liri- v The State (2007) SC 883

The Acting Public Prosecutor -v- Don Hale (1998) SC564

Cases Referred

Avia Aihi –v- the State (N0.3) [1982] PNGLR 96

Goli Golu –v- the State [1979] PNGLR 653

Counsel:

Mr T Ai and Mr A. Bray, for the State

Mr. D. Dusal, for the Accused

DECISION ON SENTENCE

16th April, 2010

1. KAWI, J: The accused Koivi Ipai was indicted and he pleaded not guilty on arraignment to one count of wilfully permitting a prisoner to escape from custody which is contrary to section 140 of the Criminal Code.

THE STATE ALLEGATIONS

2. The prisoner, a policeman is a cell guard manning the Boroko Police Station.

3. The State alleges that the accused whilst on duty on the 28th December 2007 from 3:00pm to 11:00pm as a cell guard at the Boroko Police Station wilfully permitted a prisoner, who was facing serious criminal charges of break and enter and stealing, to escape from lawful custody. After a lengthy trial the accused was found guilty and accordingly convicted.

4. This is now my judgement on sentence and penalty.

ALLOCUTUS

5. In allocutus you pleaded leniency and asked me to exercise my discretion to impose a non custodial sentence upon you. You asked me to take into account these matters:

(a) You are a family man with five (5) children. Three of these children are in High School while two are in Primary School. You indicated that as all your children are still in school, they depend entirely upon you for their daily upkeep and educational needs. You stressed that the school fees are all paid for by yourself.

(b) You also asked the Court to consider the fact that you are the only breadwinner of your household. Your entire household needs are provided by you. Your wife is a housewife and depends upon you to provide much needed support for herself and the Children.

(c) You expressed remorse for your actions, by saying sorry to the court for what you did. You apologized and told the court that this was the first time out of the thirty plus years that you have served in the Police Force, that you have committed a criminal offence.

PRE- SENTENCE REPORT AND THE MEANS ASSESSMENT REPORT

6. A Pre-Sentence Report and Means Assessment Report was carried out on you by the Probation Services of the Justice Department. It was tendered into court and relied upon by your counsel in his address on sentence. I will refer to important aspects of this report later on in my judgment.

7. The Pre-Sentence Report covered your family background, your marital status, your educational background and your employment history. The Report also sought the views of your former Officer In Charge of the Boroko Police Station cells, Mr Mathew Timbil who spoke well of your past working record. He also mentioned that as the current Officer in charge of all Police Barracks in NCD he has been receiving numerous complaints especially from wives of policemen. The complaints are about policemen neglecting their wives and children. Whilst this is a common complaint from policemen’s wives, he has never received any complaints from the wife of the accused. Mr Timbil made this point to show that you are a good strong family man, who puts the welfare of you family ahead of other social matters and obligations. Apart from Mr Timbil the new OIC in charge of Cells Chief Sergeant Sevigil Jerry was also interviewed. He mentioned that you never worked under him and so he can’t say much about you. You also undertook not to come into conflict with the law again.

8. You were also asked about your attitude to the offence you committed. You basically maintained your innocence, but expressed remorse. Finally the Report contained a recommendation from the Probation Officer recommending that you are a very suitable candidate for probation. The Report then contains the reasons why it recommended that a non custodial sentence be imposed upon you. These reasons are:

(a) The offender is a first time offender with no past criminal record;

(b) The offender is not a threat to the community;

(c) The offender is the only bread winner in the family and the future of his five young children are likely to be jeopardized without their father’s presence if ordered custodial sentence. The Report mentions that the Offender’s wife is unemployed and the entire family depends entirely on the offender for their daily upkeep and house hold needs. This includes paying for all school fees for the children in school and their educational needs.

9. I have read through the Report and find that it sought views from both the Police Department as your present employer as well as members of your family. I am satisfied with the Report as being a fair and balanced report and I therefore accept it.

THE LAW

10. By wilfully permitting a prisoner to escape from custody you have breached section 140 of the criminal code and I have accordingly convicted you of committing that crime. The crux of this crime is that you are a law enforcing officer virtually permitting a law breaker, the very rule of law that you are supposed to uphold, maintain and enforce, to escape from lawful custody.

11. Section 140 of the Criminal Code is stated in the following terms: -

140. PERMITTING ESCAPE.

A person who, being an officer of a prison or police officer, and being charged with the custody of a prisoner in lawful custody, wilfully permits him to escape from custody is guilty of a misdemeanor.

Penalty: Imprisonment for a term not exceeding three years.

12. This offence is one of those offences that is also punishable summarily under schedule 1A.

13. The seriousness of this offence is indicated by the term of sentence prescribed for this offence which in this case is a custodial term of three years.

14. Do I impose the three years upon you? I am of the view that the prescribed maximum penalty of three years should only be reserved for the cases categorized as the worst type or worst category cases.

Is This Case a Worst Type or Worst Category Case?

15. In deciding whether this is a worst type or worst category case, there is no set criteria to guide me to categorize whether your case here is of the worst type or a worst category case. Since there is no defined criteria, I propose to follow the criteria used by different National Court judges in dealing with and classifying cases of wilful damage to property. The first of these cases is the case of The State –v-Martin Sahin Terea [2005] N2816, There the accused was charged with wilfully damaging office equipment consisting of a computer, photo copier, printer cables and a printer. Cannings J categorized the case as a non violent case as no one was hurt in the melee or no other property was damaged apart from causing extensive damage to the office equipment. Makail J took a similar approach in the cases of The State –v- Betty Waime, unreported and unnumbered judgment of Makail J dated 13th November 2008 and The State –v-Jan Tundubo unnumbered and unreported judgment of Makail J dated 10th December 2008.

16. In both these cases the accused persons were charged with wilfully damaging property belonging to other persons. His Honour classified them as non violent cases in which no other persons were hurt or sustained injuries. I took the...